Muckenfuss makes a mask fuss

Michael Muckenfuss worked in maintenance at a Tyson Fresh Meats facility. When the Covid-19 pandemic began, the town's mayor instituted an executive order mandating the wearing of masks, which Tyson enforced inside the workplace. Muckenfuss presented Tyson with a note from his health care provider requesting that he wear a cloth mask with a filter instead of a surgical mask as a reasonable accommodation for his asthma. Tyson agreed to the accommodation. Muckenfuss later sued, however, claiming that Tyson kept the mask mandate in place, along with his filtered mask, after the Covid executive order expired.  

He brought his claim not under the ADA, but under a provision of the Indiana Code that prohibits an employer from requiring as a condition of employment that an employee implant, inject, ingest, inhale, or incorporate an acoustic, optical, mechanical, electronic, medical, or molecular device into their body. Muckenfuss claimed that the face mask qualified as a such a device, and that Tyson violated the statute by requiring that he wear it on his face. 

The trial court had little difficulty in dismissing this claim.

This statute was aimed to prohibit the introduction of a device "into" the body. Wearing a mask on one's face isn't that.… Mr. Muckenfuss invites an interpretation that would render this statute absurd.… [H]is interpretation would suddenly prohibit all sorts of sensible mandates by employers. No longer could a company require a bleeding employee from wearing a bandage or band-aid "against" his wound. No longer could a company require an employee to wear a protective glove, or work boots, or goggles, or many types of personal protective equipment because they were likewise designed to be used "against" the body.

As this case illustrates, any employee can sue their employer for some alleged legal violation for just about any employment decision. The issue isn't whether you can be sued, but whether the decisions you made put you in the best position to defend that lawsuit if and when it comes.

How to conduct a layoff

Elon Musk did everything wrong with his employees upon his acquisition of Twitter, including laying off half of them via email. With the economy turning sour, more businesses will be facing the stark reality of having to shed headcount. If you need to layoff some of your employees, do you know what to do? Here are four tips (excluding bonus tip number 5 — call your employment lawyer).

VOTE!

Growing up, I loved Election Day. My elementary school was a polling place, which meant that I got the day off from school. My parents would take me with them into the school auditorium where all of the voting machines were lined up down front. 

As much as I loved Election Day, I also loved the old school voting machines used. Each came with a giant red lever that you'd slide to the right to close the curtain behind you and slide again to the left to record your ballot when finished and open the curtain. I can still hear the sound of that lever clanking into place echoing through the Loesche Elementary School auditorium, a sound that I will forever equate with democracy at work.

Would you fire this employee?

Over the weekend, I asked a simple question on LinkedIn: "Would you fire this employee?"

The employee in question took to LinkedIn to celebrate Elon Musk's dismantling of Blackbirds. Blackbirds was an Employee Resource Group for Black Twitter employees to support them, foster their development, and provide them a safe space within the company.

WIRTW #649: the “Ye” edition

We need to talk about Kanye. 

In the wake of his rampant and unapologetic antisemitism, people are hanging antisemitic banners on highway overpasses and projecting antisemitic slogans on the side of college football stadiums, others are dressing up like Hitler and other Nazis for Halloween, and famed Covid-denier and flat-earther Kyrie Irving is sharing a movie full of antisemitic tropes. 

Employers need to take a firm stand against hatred. Now is not the time to stand idly by. 

Anti-Semitism is wrong. 

White supremacy is wrong. 

Racism is wrong. 

Xenophobia is wrong. 

Homophobia, lesbophobia, biphobia and transphobia are wrong. 

Hard stop. 

Anyone displaying this hate, whether inside or outside of work, should be fired. 

Any idiot is free to say whatever he or she wants. But as an employer, I am free to hold that idiot accountable for his or her ignorant hatred. Actions have consequences, and until we start holding people accountable for theirs, we are signaling that this is okay, that this is normal. It's far from okay or normal. It's disgusting and deplorable. 

Silence in the wake of hate at best condones the hate, and at worst participates in it. If it's my business, I choose not to stay silent.

Here's what I read/listened to this past week that you should also read/listen to:

The 13th nominee for the “Worst Employer of 2022” is … the slaughtering supervisor

There's retaliation … and then there's murder. 

A federal court jury recently returned a unanimous guilty verdict against Juan Rangel-Rubio for murdering a whistleblower who exposed a multi-million-dollar scheme to fraudulently employ undocumented workers. His two co-defendants—Rangel-Rubio's brother, Pablo, and Higinio Perez-Bravo—await sentencing after pleading guilty for their role in the murder conspiracy. 

If your surveilling employees, the NLRB is watching you

Wearable trackers. Security cameras. GPS trackers. Keyloggers. Live webcam monitoring. Technology has made it easier for employers to monitor and manage their employees' productivity and discipline employees who fall short of expectations. Moreover, technology makes it possible for employers to continue tracking employees after the workday ends via employer-issued cellphone or wearable devices, and apps installed in employees' own devices.  

Employers are monitoring employees, and the NLRB is monitoring employers' use of these monitoring technologies.

NLRB General Counsel Jennifer Abruzzo just issued a memo on Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.

Pretext for termination ≠ cause for termination

Shortly after Elon Musk closed his $44 billion acquisition of Twitter, he cleaned out its C-suite. He fired CEO Parag Agrawal, CFO Ned Segal, CLO Vijaya Gadde, and general counsel Sean Edgett. 

This is not all that unusual. A new owner of a company should feel 100 percent comfortable with his executive team, and if Musk wasn't totally comfortable with that quartet running Twitter, then it's his prerogative to replace them. 

Employees who hold positions of authority such as CEO and CFO usually have employment agreements, and those agreements typically contain severance payouts if the agreements are terminated "without cause" prior to their natural expiration. This group of Twitter execs appear to be no different, and reports suggest that their agreements called for severance payouts totaling $122 million.

Are unions cool (again)?

Are unions cool again? Were they ever cool? 

On the most recent episode of Good Morning, HR, I sat down with host Mike Coffey to discuss the current wave of unionization that is sweeping the nation.

• The main factors causing a renewed focus on unionization.
• How Gen-Z has been energized to pursue safe and fair workplace environments.
• The signs that employees are ready to unionize.
• The best way that employers can avoid unionization.
• Actions employers should take when faced with an organization effort.
• The limits of employers and organizers during a union campaign.

You can listen on Apple Podcasts, Spotify, Google Podcasts, Stitcher, on the Good Morning, HR website, and everywhere else you get your podcasts. You can even watch on YouTube.

To whet your appetite, here's a quick tease. I answer the question, "What should the employer do when they first get wind that there's card collection activity going on?"

WIRTW #648: the “Red October” edition

All of my earliest sports memories involve the 1980 Phillies. 

Mike Schmidt's towering home runs. 

Steve Carlton's unhittable sliders. 

Bake McBride's hair. Pete Rose taking out Bruce Bochy at home plate. 

Tug McGraw leaping off the mound after striking out Willie Wilson and sealing the Game 6 victory against the Royals. (It was the first World Series win for one of baseball's oldest franchises, ending its 97-year title drought, and is the defining sports moment of my childhood).

I'll be the first to admit that I've fallen off the Phillies train since their last playoff run ended in 2011. It's a combination of living in Cleveland for nearly 30 years combined with a decade of mediocrity. 

Well, I'm back, baby! I've had an eye on the Phillies all season long, but with this month's dominant playoff run, capped off by Bryce's Bedlam at the Bank, I am all in for the Fightin' Phils!!!

If you're still on the fence of who to root for in the World Series, here are 8 reasons the Phillies should (must) be your pick over the Astros (one for each of the Phillies' 8 NL pennants).

1. Philly is the underdog. 87 wins and the last team in vs. 106 wins and the best team in the American League. We're Rocky against Houston's Apollo Creed. Who roots for Creed to win?!


2. No Philly = no baseball. Philadelphia is the cradle of our nation. Without Philly, there's no America. And if there's no America there's no need for America's pastime. 


3. The Philly Phanatic is the best mascot in all of sports. No debate. Case closed. (Sorry, Gritty.)


4. The Astros win too much. This is their 4th World Series in the past 6 years. It's time for someone (anyone) new. Why not us?


5. The Astros are a bunch of stinkin' cheaters. They cheated their way into winning the 2017 World Series and suffered no real consequences. Their bill is way past due, and the Phillies have come to collect.


6. This Phillies team is what sports is all about. No prima donnas, just blue-collar attitudes and hard work until the last out. This team never quits and is crazy fun to watch.


7. Cheesesteaks > tamales.


8. Ted Cruz is an Astros fan. 'Nuff said.

Go Phillies!!!

Here's what I read this past week that you should read, too.

Must an employer pay employees for time spent waiting for computers to boot up?

It's a tale as old as time … or at least as old as employees have been working on computers. You start your work day by turning on your computer, and you wait. Wait for the computer to boot up so that you can then start actually working. That process (which repeats at the end of the work day when you shut the computer down) can take 30 seconds or it can take a few minutes or longer, depending on the age and speed of the machine, the operating system it runs, and the number of apps that need to load during the process. 

Here's the question — Is the time an employee spends waiting for their work computer to boot up compensable working time for which an employer must pay?

According to Cadena v. Connexx LLC (which the 9th Circuit just decided), the answer is an unequivocal yes.

The Surgeon General correctly wants you to focus on employee mental health

According to two recent surveys:

• 76% of U.S. workers report at least one symptom of a mental health condition.
• 84% of those reporting mental health symptoms believe their workplace is a contributing factor. 
• 81% of employees will be looking for workplaces that support mental health in the future.

For these and many other reasons, including Covid-19 bringing the relationship between work and well-being into clearer focus,  Dr. Vivek Murthy, the U.S. Surgeon General, has released a comprehensive report on workplace mental health and well-being.

This is what buyers’ remorse looks like

On May 9, 2022, the baristas working at the Starbucks store located at 1123 NW 63rd St., Nichols Hills, OK 73116 voted 10-9 to unionize. It was the first unionized Starbucks in the State of Oklahoma.

On the heels of the "victory," Collin Pollitt, the barista that led the unionization movement in that region, said this: "Today, we have become true partners in our organizing for a more just labor structure, where workers have a say in their workplace and earn a baseline living wage. We have reined in corporate power, and we carry on the banner of Martin Luther King Jr. with the idea that all labor has dignity."

A mere 163 days later, however, it appears that the store's employees have caught a case of buyer's remorse, as they have filed a decertification petition with the National Labor Relations Board. Unfortunately for them, however, whether they still want to be unionized or not, their petition and decertification effort is doomed to fail, and they will be stuck with their union, at least until May 9, 2023.

WIRTW #647: the “paying my debts” edition

You'd think I'd know better. 

• A payroll $182 million higher.
• 7 more regular season wins with run differential 176 points higher. 
• An MLB-leading 254 home runs vs. a near worst 127.
• Home field advantage in short five-game series.
• Aaron Judge.

Yet, I couldn't resist the allure of an ALDS bet with my friend (and dyed in the wool Yankees fan) Dan Schwartz on the outcome of the Guardians/Yankees ALDS series. The stakes? The loser must write a blog post heaping praise upon on the other team.

I lost, so here it goes.

Experience matters. This holds true in sports as it does in litigation. 

The average age of the Yankees rosters is 30.12 years, the oldest in the American League. The Guardians? 26.42 years, the youngest in all of baseball. This is the Yankees sixth consecutive year in the playoffs. The last time the Guardians made the playoffs they were called the Indians. They haven't won a playoff series since 2016, and the only person on their current roster to play in that World Series was Jose Ramirez. The Guardians young nucleus will continue to win for a few more years until such time as they cannot afford to resign their very young and exciting nucleus of Steven Kwan (25), Andres Gimenez (24), Oscar Gonzalez (24), Triston McKenzie (25), or Emmanuel Clase (24). Heck, even former Cy Young winner Shane Bieber is only 27.

Litigation is no different. Yes, the lawyers with less experience can win a case. In fact, they often do. They can work harder and smarter. Facts are facts and law is law, and no matter how seasoned you are, it's hard to escape bad facts and contrary law. Heck, in the first case I ever tried (and won) to a jury I was a fifth-year lawyer who never had done an opening or closing in a courtroom, and my opposing counsel was a member of the 50-year club. Having more experience doesn't equate to win rate. But it also doesn't hurt. And sometimes, the side with "more" wins. Experience matters. In a close enough case, it can be the difference. 

So, congrats to the Yankees (and, by extension, Dan). We'll see you again next season, where a healthy Jose Ramirez and a team with a year of postseason experience under its belt will bring about a very different result.

Here's what I read and listened to this past week that I think you should also be reading and listening to.

Ageist and ableist statements to 58-year-old disabled employee doom employer’s discrimination defense

"I wouldn't think with your condition and—your medical condition and your age that you would want to teach."

"I think your disability is slowing all this down.… You're really too old to be doing this."

"You need to go ahead and retire.… I'm concerned about this disability you have, your condition with your liver."

"Just how disabled are you?"

"I'm tired of disabilities and I'm tired of medical problems."

"I'm not running a rehabilitation clinic."

"If you're not at 100 percent, I can't use you. You've got to be 100 percent for this job."
 

These are just some of the comments Robert Bledsoe — a 58-year-old nuclear-plant operator who returned to work following a liver transplant — claims his supervisor made to him in the months prior to his removal from a teaching position. The Tennessee Valley Authority, on the other hand, claimed that it demoted Bledsoe based on ethical concerns after his son was accepted to the training program he taught.

Don’t estop thinking about your leave claim

"Is there money owed to you for claims against third parties, whether or not you have filed a lawsuit or made a demand for payment, such as for accidents, employment disputes, insurance claims, or rights to sue?"

When Stephen Stanley filed his bankruptcy petition with the bankruptcy court, he answered that question, "No." 

His problem, however, was that within weeks of filing his bankruptcy, Stanley's employer fired him from job, which he believed was related to their earlier FMLA violations. 

Several months later, the bankruptcy court modified Stanley's bankruptcy plan with "no future modifications." Indeed, Stanley never disclosed to the bankruptcy court the FMLA claims (or the FMLA lawsuit he filed against his former employer) until 16 months later, and only after the employer's lawyer questioned him about it at his deposition in his FMLA interference lawsuit.

Unions: fad or trend?

Last Friday I joined my good friend Eric Meyer via Zoom on his weekly Employer Handbook Zoom Office Happy Hour. Our topic: whether the recent rise in union popularity and success is a fad or a trend. 

If you missed it live, you can watch the video replay via The Employer Handbook YouTube Channel.

And if you're the kind of person who wants to hear more of my voice (and who isn't?), then please check out this week's episode of The Norah and Dad Show, the podcast I co-host with my daughter. It's available via Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, Stitcher, the web, and everywhere else you find podcasts.

Jousting over union names and trademarks

One of the trends that has come through in the recent wave of unionization is the use by labor unions of corporate names and logos in their branding.

📦 Amazon Labor Union
☕ Starbucks Workers United
📱 Apple Retail Union
⚔️ Medieval Times Performers United

It's the latter that has caught the ire of the employer (Medieval Times), which has now filed a trademark infringement lawsuit against the union.

WIRTW #646: the “conceptualized” edition

A "concept album" is an album that tells a story through a single instrumental, compositional, or lyrical narrative or theme. The songs bind together through that theme and hold a larger purpose or meaning collectively than individually.

Debates rage over what album qualifies as the "first" concept album. You can make an argument for Frank Sinatra's In the Wee Small Hours, Pet Sounds by the Beach Boys, or The Mothers of Invention's Freak Out!. Conventional wisdom, however, gives that title to Sgt. Pepper's Lonely Hearts Club Band, the 1967 masterwork by The Beatles, in which the band assumed the alter ego of the titular band.

Rolling Stone just released its list of the 50 greatest concept albums of all time. I've always loved concept albums. The storytelling. The themes. The idea of the sum of the whole being greater that its individual parts. I have great memories of sneaking off to the woods during my summer at overnight camp to listen to a bootleg cassette of The Wall front to back, over and over and over. The Who's Tommy and Quadrophenia were my entrée into my lifelong love of that band. I would spend hours reading the liner notes of my Lamb Lies Down on Broadway CD to try to understand Peter Gabriel's bizarre story. 

Anyhow, borrowing Rolling Stone's idea, here's my list of my top 11 concept albums, ranked not by greatness, impact, or importance (they all fit that bill), but in order of which I'd choose to listen to, front to back, over and over and over.

1. David Bowie – The Rise and Fall of Ziggy Stardust and the Spiders from Mars
2. Genesis – The Lamb Lies Down on Broadway
3. Curtis Mayfield – Super Fly
4. The Who — Quadrophenia and Tommy (I couldn't pick just one)
5. The Kinks – The Kinks Are the Village Green Preservation Society
6. Pink Floyd – The Wall
7. Green Day – American Idiot
8. Liz Phair – Exile in Guyville
9. Marvin Gaye – What's Going On
10. The Beatles – Sgt. Pepper's Lonely Hearts Club Band

Agree? Disagree? Let me know.

Here's what I read this past week that I think you should read, too.

Ex-Starbucks manager throws employer under the bus for its alleged anti-union retaliation

"I didn't want to do illegal stuff. I've worked my entire life to build up a career of integrity, and I was not going to allow Starbucks to take that from me."

That's what David Almond, the former manager of several of Buffalo-area Starbucks told an NLRB administrative law judge earlier year, according to information received by Bloomberg pursuant to its Freedom of Information Act request.

What "illegal stuff?"